Alaska R. Evid. 509

(a) Rule of Privilege. The United States, the State of

Alaska and sister states have a privilege to refuse to disclose

the identity of a person who has furnished information relating

to or assisting in an investigation of a possible violation of law

to a law enforcement officer or member of a legislative

committee or its staff conducting an investigation.

(b) Who May Claim. The privilege may be claimed by

an appropriate representative of the public entity to which the

information was furnished by the informer.

(c) Exceptions.

(1) Voluntary Disclosure—Informer a Witness. No

privilege exists under this rule if the identity of the informer or

the informer’s interest in the subject matter of the

communication has been disclosed to those who would have

cause to resent the communication by a holder of the privilege

or by the informer’s own action, or if the informer appears as a

witness for the prosecution.

(2) Testimony on Merits.

(i) If a party claims that a government informer may be

able to give testimony necessary to a fair determination of the

issue of guilt, innocence, credibility of a witness testifying on

the merits, or punishment in a criminal case, or of a material

issue on the merits in a civil case to which the state is a party,

and if the government invokes the privilege, the party shall be

given an opportunity to show that the party’s claim is valid.

The judge shall hear all evidence presented by the party and

the government, and both sides shall be permitted to be present

with counsel during the presentation of evidence, subject to

subdivision (c) (2) (ii) of this rule.

(ii) If the government requests an opportunity to submit

to the court, by affidavit or testimony or otherwise, evidence

concerning the information possessed by an informant, which

submission might tend to reveal the informant’s identity, the

judge shall permit the government to make its submission

without disclosure to the other party. Neither the attorney for

the government, nor the other party or the other party’s

attorney may be present when the judge is examining the in

camera submission. Although the submission generally will

consist of affidavits, the judge may direct that witnesses appear

before the judge, without the government or the other party

present, to give testimony.

(iii) If the judge finds that there is a reasonable possibility

that the informant can give the testimony sought, and if the

government elects not to disclose the informant’s identity, the

judge shall, either on motion of a party or sua sponte, dismiss

criminal charges to which the testimony would relate if the

informant’s testimony is material to guilt or innocence. In

criminal proceedings in which the informant’s testimony is not

material to guilt or innocence and in civil proceedings the

judge may make any order that justice requires.

(iv) Evidence submitted to the judge shall be sealed and

preserved to be made available to the appellate court in the

event of an appeal, and the contents shall not otherwise be

revealed without consent of the government.

(3) Legality of Obtaining Evidence.

(i) When a defendant challenges the legality of the

means by which evidence was obtained by the prosecution and

the prosecution relies upon information supplied by an

informer to support its claim of legality, if the judge is not

satisfied that the information was received from an informer

reasonably believed to be reliable or credible the judge may

require the identity of the informer to be disclosed. In

determining whether or not to require disclosure, the judge

shall hear any evidence offered by the parties and both the

defendant and the government shall have the right to be

represented by counsel.

(ii) If the judge determines that disclosure of the

informant’s identity is necessary, upon request by the

prosecution the disclosure shall be made to the court alone, not

to the defendant. The judge may, if necessary, examine the

informant or other witnesses about the informant, but such

examination will be in camera and neither the defendant nor

the prosecution shall be present or represented.

(iii) If disclosure of the identity of the informer is made to

the court and not to the defendant, the record thereof shall be

sealed and preserved to be made available to the appellate

court in the event of an appeal, and the contents shall not

otherwise be revealed without consent of the prosecution.